WaPo Fact Checker: No, Democrats, History Proves No Obligation for Senate to Vote on Court Nominees

March 21st, 2016 2:59 PM

Three Pinocchios. That's the grade the liberal-leaning Washington Post fact checker Glenn Kessler gave to Democrats' claims that Republicans' plans to bottle up Merrick Garland's nomination to the Supreme court were an abrogation of their constitutional duty.

Noting that he had previously examined "how, depending on the circumstances, Democrats and Republicans have flip-flopped on the question of nominations in an election year," Kessler last Wednesday decided to examine the issue of whether "there a precedent for the current Republican refusal to consider Obama’s nominee[.]"

What followed was an examination, starting with a lame-duck nomination in 1828, of the relevant historical record, courtesy of research by the nonpartisan Congressional Research Service (emphases mine): 

In August 1828, Justice Robert Trimble died just as President John Quincy Adams was battling a tough reelection campaign against Democrat Andrew Jackson. Adams ended up losing to Jackson, but in December nominated Kentucky lawyer John Crittenden to replace Trimble. (Recall that before passage of the 20th Amendment in 1933,  the presidential inauguration did not take place until March.)

Supporters of Jackson opposed this lame-duck nomination, leading to a debate of nine days on the floor of the Senate. Supporters of Adams’s maneuver argued that it was a duty of the president to fill vacant slots, even in the waning days of a presidency. They offered an amendment on the floor:

“That the duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that it is not now expedient or proper to alter it.”

But this amendment was rejected in a voice vote and then the Senate voted 23-17 to adopt an amendment saying “that it is not expedient to act upon the nomination of John I. Crittenden.” A few days after becoming president, Jackson nominated John McLean, the Postmaster General under Adams, to replace Trimble. (Jackson did this mainly to get McLean out of the Cabinet and to remove the possibility of him running for president, according to a study of the confirmation process.)

According to the Congressional Research Service, “By this action, the early Senate declined to endorse the principle that proper practice required it to consider and proceed to a final vote on every nomination.”

After running through other examples, Kessler offered his conclusion, which is essentially that there's no way to say for sure whether there's a firm constitutional duty to hold a confirmation vote, and that Democrats claiming as much are telling a "fairy tale" (emphases mine):

As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term.

But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

Liberal media outlets love to run to fact checkers when they confirm Democratic claims or rebuke Republican ones, but don't expect Kessler's analysis to be repeated on the air on CNN or MSNBC nor the Big Three broadcast networks.